Reflections on AGNI decision

Law and practice Mental Capacity Act
1

In essence Cheshire West was laid to rest.

The true nature of Article 5 - hand in hand with the 1966 Practice Statement - meant a return to the past. No bad thing.

The interpretation of the MCA and it’s Code of Practice will be changed so much, they they will have to be revised considerably.

2

I agree that there’ll need to be updates and new guidance, but the MCA code and the DOLS supplement were written well before Cheshire West, so if anything they’ll be back in vogue.

My favourite judges in this area have always been DJ Eldergill and Mostyn J (also Lieven J recently). I’m sure they’ll be happy with being vindicated. I asked Anselm at a conference years ago how Mostyn got such bad press when there was hardly a fag paper between them. I can’t fully remember the answer but think it was along the lines of, “It must be how we say it.”

We should write our laws based on what we want to achieve as a nation and ensure compliance with relevant international treaties as a secondary consideration. It’s foolish to build a legislative regime on the shifting sands of ECHR case law.

3

What i said to a colleague was - We (the majority of health and social care) have ultimately been asleep at the wheel in meeting our responsibilities under the Care Act, Mental Capacity Act and ECHR, for example, and relying on DoL to make us do what we should already be doing! As the judges rightly said,"185 […] A crude application of article 5 cannot be a cure for the problems posed by caring for vulnerable adults with mental health or other cognitive disabilities. Nor is it necessary to adopt that interpretation of article 5 to safeguard the interests of such individuals, since other legal regimes and Convention rights apply in their case", I think that is entirely correct.

4

Interested in the hive mind views on the little Venn diagram i have put together on the recent AGNI ruling… In my mind the presence of ‘objection’ or ‘conflict’ will ultimately be a determining factor when considering the objective element of DoL, but also by extension the subjective element… I put it like this to a colleague "…if you start with the objective element (which we should), and it indicates confinement through the multi-factorial assessment, I cannot imagine a situation where you could still conclude valid consent, because the objective element requires compulsion, and if you are compelled you’re de-facto objecting, and if you are objecting you can’t be seen as validly consenting for the purposes of Article 5."

All views welcome on the below, but this is not to be used for training purposes its just a tool to start thinking things through:

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5

Should have said, my references for the above were:

6

The strict subjective/objective distinction was invented in Storck and repeated almost mindlessly in every case since. Once you accept that there are subjective considerations involved in the objective element (to the extent of requiring coercion and equating coercion with objection) the next step is to wonder whether in practice to abandon the distinction. But maybe there are cases where objection and lack of valid consent don’t coincide:

  • Objection but valid consent – I think the courts have left open the (contentious) possibility that a third party can provide the valid consent even if you object.
  • No objection but no valid consent:
    • Sometimes people get detained under the MHA despite agreeing to admission, for example because it’s thought they might change their minds or not be able to abide by their promises to stay. Surely they are deprived of their liberty under Article 5, despite for the time being not objecting (which I guess would mean that there can be coercion without objection). You might need to detain someone under the MCA in similar circumstances.
    • In some circumstances the state just shouldn’t be able to wriggle out of Article 5 because of your consent, e.g. a repentant prisoner who accepts his punishment or a conditionally discharged patient who wants to live where he is told and doesn’t mind only leaving when given permission.

I’ve always thought Article 5 was a square peg being used for a round hole. By making MCA detention more like MHA detention maybe the Supreme Court has knocked some corners off.

7

Yeah that was interesting, so I would assume that this would need to be:

  • LPA for Health and Welfare (NB: I wonder whether the OPG would consider an opt in or opt out of this (or at least allude to this in the ‘instructions’ section), like there is the opt in / out for life sustaining treatment in section 5 of the form “You must choose whether your attorneys can give or refuse consent to life-sustaining treatment on your behalf.”, LP1H Lasting power of attorney - Health and care decisions)
  • Deputy for Health and Welfare (but would need to be specified in Court Order)
  • Re 16 & 17 year olds we have In the matter of D (A Child) - UK Supreme Court which concluded “para 49 […] it was not within the scope of parental responsibility for D’s parents to consent to a placement which deprived him of his liberty”. Interesting to see what happens in this space.
8

Another interesting question is whether it leaves open the option for advance consent to confinement (through some form advance statement not ADRT), where a person is able, and perhaps with previous experience of confinement, can state their ‘wishes and feelings’ are that - they are ‘happy’ to be confined in certain prescribed situations. Meaning that if they are ‘confined’ their advance statement would indicate that there is ‘valid consent’, as long as it remains within the prescribed circumstances (NB: this idea was raised with me by someone else, so isn’t my specific reflection but wanted to share to add to the discussion - they articulated the point far better than i have so apologies if they read this and I haven’t done their point justice).